Mills v. . Davis

Church, Ch. J. We think the order not appealable to this court. It was discretionary with the court below whether to proceed summarily against the sheriff or leave the parties to litigate in the ordinary way by action. When a claim is made against the sheriff for money in his hands, and there is any doubt upon the question, it is usual for the court, for the protection of the officer, to refuse to compel him to decide the controversy at his own risk. (7 B, & C., 381; 9 How. Pr. R. 459.) We concur with the opinion of *351 Sedgwick, J., upon this point. The question of propriety in granting such an order is governed by no fixed rule of law, but depends upon the circumstances of each case, and is discretionary within the true meaning of that term. This court, by section 11, subdivision 3, has power to review an order made upon a summary application after judgment affecting a substantial right; but from the restricted jurisdiction of the court, as an appellate tribunal, it has uniformly held that it did not extend to discretionary orders, while the General Term is not so restricted. (29 N. Y., 418.) This order affects a substantial right, but it is discretionary, and, therefore, not appealable to this court. As there is no reason to doubt the good faith of the plaintiff, and as there is some confusion, if not conflict, in the authorities upon the question of the appealability of such orders, we have concluded to dismiss the appeal, without; costs. All concur. Appeal dismissed.